Keough v. Board of Aldermen of Holyoke

• Decision Date: 10 May 1892
• Citation: 31 N.E. 387,156 Mass. 403
• Parties: KEOUGH v. BOARD OF ALDERMEN OF HOLYOKE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

156 Mass. 403

31 N.E. 387

KEOUGH v. BOARD OF ALDERMEN OF HOLYOKE et al.

Supreme Judicial Court of Massachusetts, Hampden.

May 10, 1892

COUNSEL

George M. Stearns and C.T. Callahan, for plaintiff.

William H. Brooks and William Hamilton, for defendants.

OPINION

FIELD C.J.

The use of the writ of mandamus to try the title to an office is unusual, but we are of opinion that in such a case as this it affords the speediest and best method of settling the dispute of two rival claimants of a municipal office. We have stated the reasons for this opinion in the recent case of Luce v. Board of Examiners, 153 Mass. 108, 26 N.E. 419; and the use of the writ for this purpose is not without authority. The report finds that all the allegations of the petition were proved. The material facts are that at a joint convention of the city council held on January 5, 1892 pursuant to St.1873, c. 154, § 13, two ballots were had without effecting an election, and that the convention "took a third ballot on which all the members of the said city council voted, on which last-named ballot, the whole number of votes cast was twenty-eight, (28,) of which your petitioner received fifteen (15) and one Daniel Proulx received thirteen, (13,) and that the mayor, who was presiding officer of said joint convention, declared that your petitioner was elected; all of which proceedings of the said joint convention appear by the records thereof, *** and that said joint convention dissolved." According to the record a dispute arose over the second ballot, in which it appears that Daniel Proulx received 14 votes, the petitioner 10 votes, one Richard S. Burns 3 votes, and there was 1 scattering vote. The tellers reported that this scattering vote was not legibly written, and that they were unable to count it for any person. The mayor also examined this ballot decided that it was not legible, and that no choice had been made, and directed another ballot to be taken, which was done, and is the third ballot, at which the petitioner was declared elected. Some members of the convention thought that the ballot was intended for Mr. Proulx, and that it should be counted for him, and that he should be declared elected. The justice who heard the case has found, if it was competent for him so to find, "that the paper should not be counted as a ballot, and that the voter who cast it had not legibly expressed his choice." Without considering whether there is any absolute rule of law as to what should be done with a ballot of this kind, it is plain that the mayor's decision on the facts was a reasonable one, and that it was for the tellers in the first instance, and then for the mayor, to make the decision. If the name on the ballot could not be made out with reasonable certainty, it ought not to have been counted for any person. If the ballot was cast by a member of the convention as a vote for a real and not a fictitious person, it should have been counted in ascertaining the whole number of votes cast. The convention by proceeding to another ballot, in which all the members voted, assented to the decision of the mayor; and the petitioner having been elected on that ballot, and having been duly declared elected, and the...